Monday, December 26, 2005

Double Your Scherer

We hope you are recuperating swiftly from the last couple of holidays; with New Year's Eve approaching, you may yet again need to tap into your deep and (if you have paced yourself) almost-but-not-quite-depleted reserves of festivity, but after that we plan to give you a good six weeks off until Valentine's Day arrives. Earlier today, while we were busy digesting the whole suckling pig we swallowed yesterday by unhinging our jaw -- a simple trick that never fails to delight the youngsters at the Zemblan royal feast -- we noticed that Michael Scherer (Scherer, not Scheuer, who wrote Imperial Hubris) has a couple of interesting items up at Salon. To start with the newsier of the two: defense attorney David Smith says that his client, the only target of Mr. Bush's illegal domestic-surveillance program whose name is not at present classified, is willing to consider a lawsuit against the President. Unfortunately, his client happens to be Iyman Faris, the chap who had the brilliant idea to bring down the Brooklyn Bridge with a blowtorch:

The offer comes at a time of concern among civil liberties attorneys, who worry that the courts may never get a chance to adjudicate the legality of President Bush's secret wiretap program. "Courts don't like to hear hypothetical matters," said Barry Steinhardt, director of the ACLU's Technology and Liberty program, who has been preparing for a court battle. "There has to be a real plaintiff with a real injury."

Last week, the New York Times quoted several officials who claimed that Faris was caught with the help of warrantless wiretaps, making him one of only a few routes to challenging the legality of President Bush's program. The president could also face criminal charges from a special prosecutor, an unlikely scenario in the current political climate. Under the 1978 Foreign Intelligence Surveillance Act, warrants from a secret court are required to wiretap an American citizen in a matter of national security. President Bush has argued that his constitutional powers to defend the country trump the law's requirements . . . .

Legal scholars said that there could be several legal options open to Faris. "The defendant can argue that the search was unlawful so all of the evidence to follow was fruit of the poisonous tree," said Jamin Raskin, a law professor at American University. Faris may also be able to sue for civil penalties under Title III, the federal wiretap statute, which bars illegal monitoring of electronic conversations. He could also bring a constitutional tort alleging violation of his Fourth Amendment rights, said Raskin. Faris may not be able to sue under FISA, which denies standing to those who work with foreign terrorist organizations.

But if civil libertarians wait for the perfect case, they may have to forgo a legal challenge altogether. The targets of the secret NSA program are classified, and barring additional leaks, it is unclear how innocent American citizens would discover that they have been monitored. "The reality is that the people in Fourth Amendment cases are rarely the people you would invite over to dinner," said Chris Hoofnagle, senior counsel to the Electronic Privacy Information Center.

For Bamford, there is only black and white when it comes to the Foreign Intelligence Surveillance Act, a 1978 law that specifically requires warrants for any NSA wiretapping of U.S. citizens. "If you want to eavesdrop on U.S. citizens, you go to court. If you don't, you go to jail," Bamford says. "If you want to change the law, you go to Congress."

Bamford's outrage stems, in part, from having been misled by agency officials. For years, he says, his contacts at the NSA repeatedly assured him that the agency was strictly following the letter of the law, even after Sept. 11. At the same time, President Bush assured the American people that "nothing has changed." "When we're talking about chasing down terrorists," Bush said in one speech, "we're talking about getting a court order before we do so." Hayden, who became the deputy director of national intelligence, also reassured Congress, calling NSA "the most aggressive agency in the intelligence community when it comes to protecting U.S. privacy."

"I interviewed a lot of people at NSA, including the director a number of times. The impression I always got was they were keeping as far from the edge as they could in terms of what the law is," Bamford says. It was a message he believed and put in his books. "I went out of my way to defend NSA," he says. "I said they were not going back to the bad old days" . . . .

Twenty-three years after publishing "Puzzle Palace," Bamford still likes to quote Sen. Frank Church of Idaho, who warned in 1975 of the vast powers of NSA's signal intelligence operation. "That capability at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversation, telegrams, it doesn't matter," Church declared then. "There would be no place to hide."